STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-231
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Liberty and Freedom Legal Group, attorneys for petitioner, by Erin McGuinness, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from a decision of an impartial hearing officer (IHO) which denied the parent's request that respondent (the district) fund the costs of her son's tuition and supplemental services at the International Institute for the Brain (iBrain) for the 2024-25 and 2025-26 school years. The appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed, and given the disposition of this matter, it is not necessary to recite the facts and procedural history of this case in detail. The student is 15 years old and was unilaterally placed at iBrain, for both the 2024-25 and 2025-26, 12-month school years (Dist. Ex. 4 at p. 11; Pendency Order dated Sept. 9, 2025).
A CSE convened on March 13, 2024, and finding that the student remained eligible for special education as a student with multiple disabilities, developed an IEP with a projected implementation date of March 14, 2024 (Dist. Ex. 3 at p. 1). The March 2024 CSE recommended that the student attend a 6:1+1 special class in a specialized school and receive two periods per week of adapted physical education along with related services of two 30-minute sessions per week of individual occupational therapy (OT); two 30-minute sessions per week of individual physical therapy (PT); two 30-minute sessions per week of individual speech-language therapy; and two 30-minute sessions per week of speech-language therapy in a group of two (Dist. Ex. 3 at pp. 32-33, 40). The CSE recommended six 60-minute sessions per year of group parent counseling and training (Dist. Ex. 3 at p. 33). The CSE also recommended that the student be provided with a static display, speech generating device and that the student receive special transportation from the closest safe curb location to school (id. at pp. 34, 40). The March 2024 IEP indicated that the student would receive the same special education program and services "recommended above" during the 12-month school year, summer 2024 (Dist. Ex. 3 at pp. 34, 41-42). The March 2024 CSE's recommendations were summarized in a prior written notice dated March 15, 2024 (see Dist. Ex. 9).
On August 1, 2024, the parent electronically signed an enrollment contract with iBrain for the student's attendance from August 8, 2024, through June 27, 2025 (Parent Ex. A at pp. 46-52). Thereafter, on October 4, 2024, the parent sent the district a letter stating her intention to unilaterally place the student at iBrain for the 2024-25 school year (Parent Ex. A at pp. 44-45).
On January 23, 2025, the parent electronically signed an agreement with Sisters Travel and Transportation Services, LLC (Sisters Travel) for transportation services for the period of August 8, 2024, through June 27, 2025 (Parent Ex. A at pp. 53-59). The same day, the parent electronically signed an agreement with "B&H Health Care Services, Inc. - DBA Park Avenue Home Care" (B&H) for the provision of 1:1 transportation nursing services and "a 1:1 Private Duty Nurse" during school hours from October 15, 2024, through June 27, 2025 (id. at pp. 60-67).
On April 9, 2025, a CSE convened for the student's annual review, and finding that the student remained eligible for special education services, now as a student with a traumatic brain injury (TBI), developed an IEP with a projected implementation date of April 28, 2025 (Parent Ex. C at pp. 1, 64).[1] The April 2025 CSE recommended that the student attend a specialized school in an 8:1+1 special class and receive three periods per week of adapted physical education; three 60-minute sessions per week of individual OT; one 60-minute session per week of OT in a group of three; three 60-minute sessions per week of individual PT; five 60-minute sessions per week of individual speech-language therapy; and individual school nursing services, as needed (Dist. Ex. 4 at pp. 52-54). The CSE also recommended one 60-minute session per month of parent counseling and training (Dist. Ex. 4 at p. 53). The 2025 CSE further recommended that the student receive full-time, individual paraprofessional services for ambulation, safety, and feeding; a static display, speech generating device; one 60-minute session per week of individual assistive technology services; and special transportation consisting of limited travel time in a climate-controlled vehicle from the closest safe curb location to school on a route with fewer students, as well as adult supervision from a 1:1 paraprofessional (id. at pp. 52-54, 59). The April 2025 CSE's recommendations were summarized in a prior written notice dated May 29, 2025 (see Dist. Ex. 10). On May 29, 2025, the district issued to the parent, a school location letter which identified the assigned public school site, at which the services recommended in the April 2025 IEP would be provided (Dist. Exs. 11; 12).
On June 3, 2025, the parent electronically signed an agreement with Sisters Travel for the period of July 9, 2025, through June 26, 2026 (Parent Ex. A at pp. 28-35).
On June 12, 2025, the parent sent the district a letter rejecting the April 2025 IEP, and expressing her intention to unilaterally place the student at iBrain for the 2025-26 school year (Parent Ex. A at pp. 12-13). Thereafter, on June 20, 2025, the parent electronically signed an annual enrollment contract with iBrain for the student's attendance from July 9, 2025, through June 26, 2026 (Parent Ex. A at pp. 21-27).
The hearing record contains an undated agreement between the parent and B&H for the delivery of nursing services from July 9, 2025, through June 26, 2026 (Parent Ex. A at pp. 36-43).
A. Due Process Complaint Notice
In a due process complaint notice dated July 2, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 and 2025-26 school years (Parent Ex. A at pp. 1-11). The parent first asserted that pursuant to pendency, the student was entitled to funding for the cost of tuition and supplemental services, to be paid directly to iBrain pursuant to the enrollment agreements the parent entered into with iBrain, Sisters Travel, and B&H, and the parent included a proposed pendency implementation form and a proposed pendency order (Parent Ex. A at pp. 2-3, 14-20).
With respect to both the 2024-25 and 2025-26 school years, the parent alleged a number of procedural and substantive violations and asserted that the district failed to evaluate the student in all areas of disability, failed to recommend appropriate related services and supports, and failed to recommend an appropriate public school for the student (Parent Ex. A at pp. 6-9).[2]
The parent further alleged that iBrain was an appropriate placement for the student because the student continued to receive special education programming, supported by appropriate related services, which addressed his highly intensive management needs and enabled him to make progress (Parent Ex. A at pp. 9-10). With respect to equitable considerations, the parent contended that she would have made the student available for district evaluations had she known or been made aware of the district's desire to conduct an evaluation (id. at p. 10). The parent further asserted that she would have been willing to investigate the district's proposed assigned public school site had she received a recommendation prior to the start of the twelve-month school year (id.).
B. Impartial Hearing Officer Decision
On August 4, 2025, a prehearing conference was held before an IHO with the Office of Administrative Trials and Hearings (OATH), however due to the parent's failure to appear, the IHO adjourned the conference (IHO Decision at p. 4). On August 8, 2025, both parties appeared for a conference, and the IHO issued a status conference summary and order on the same date (Tr. pp. 7-42; IHO Ex. II). An impartial hearing was held over the course of two days on September 4, 2025 and September 9, 2025 (Tr. pp. 43-278).
On September 9, 2025, the IHO issued an interim decision on pendency, retroactive to the filing of the parent's due process complaint notice and, after noted that the student began attending iBrain during the 2024-25 school year, determined that the student's program during the pendency of the proceeding consisted of the program and services recommended in the March 2023 IEP, which was never disputed (IHO Ex. V).
In a final decision dated October 15, 2025, the IHO found that the district met its burden in demonstrating that it offered the student a FAPE for the 2024-25 and 2025-26 school years and denied the parent's relief in its entirety (IHO Decision at pp. 14, 29). The IHO first determined that the parent did not make any procedural or substantive challenges to the student's March 2024 IEP, which was the operative IEP at the start of the 2024-25 school year, specifically noting that the parent's due process complaint notice did not reference, identify, or disagree with the 2024 IEP and stating instead that the CSE did not convene until May 2025 (IHO Decision at pp. 9-10).[3] According to the IHO, by failing to make specific allegations regarding the March 2024 IEP, the parent failed to provide the district notice of her problems with the March 2024 IEP and thus, the parent did not have a viable claim regarding the March 2024 IEP (id.).
With respect to the April 2025 IEP, the IHO determined that the CSE was duly constituted and that the hearing record demonstrated that the parent had a meaningful opportunity to participate in the CSE meeting as evidenced the contents of the April 2025 IEP, the CSE meeting minutes, and the school psychologist's testimony (IHO Decision at p. 10). The IHO noted that the April 2025 IEP was based on sufficient and current evaluative data, including a psychoeducational evaluation and report, the Level 1 Vocational Assessment (parent interview), the private school report and education plan, and the student's quarter one progress report from the private school (id.). The IHO found that the April 2025 IEP appropriately reflected the student's present levels of performance and individual needs, at the time it was developed, and recommended approximately 16 annual goals for the student (id. at p. 11). According to the IHO, the recommended goals were appropriate, measurable, addressed the student's areas of need, and were identical to the goals developed by iBrain (id.). The IHO then determined that the program and services recommended in the April 2025 IEP were appropriate to confer educational benefits to the student in the least restrictive environment (id. at p. 11). According to the IHO, the hearing record did not support a finding that the student required vision or hearing services to make academic progress, as the student had no documented hearing or vision loss (id.). The IHO also held that there was no basis to find that the failure to recommend an extended school day or music therapy constituted a denial of FAPE (id. at p. 12).[4]
The IHO then assessed whether the CSE's failure to recommend a daily, full-time 1:1 nursing services for the student constituted a denial of FAPE (IHO Decision at pp. ). The IHO determined that the student was not at the level of need to require one-to-one nursing services to be safe, and that the student's seizures, G-tube, and other medical needs could be appropriately addressed by school-based nursing (id.; Tr. 166-168). According to the IHO, the district appropriately recommended the assignment of a full-time, individual, health paraprofessional and the provision of individual school nurse services as needed to meet the student's needs (IHO Decision at p. 12). The IHO next turned to transportation and found that the CSE recommended special transportation consisting of limited travel time in a climate-controlled vehicle from the closest safe curb location to school (id. at pp. 12-13). The IHO noted the school psychologist's testimony that door to door transportation was not recommended due to safety concerns, specifically noting that the use of a wheelchair would frustrate a recommendation for door to door transportation (IHO Decision at pp. 12-13; see Tr. 148-149).
Regarding the parent's claim about the appropriateness of the assigned public school site, the IHO determined that, contrary to the parent's assertions, the record supported a finding that the district sent, and the parent received, a school location letter for the 2024-25 12-month school year (IHO Decision at p. 13; see Dist. Exs. 9,10, 11, 12). The IHO cited the school psychologist's testimony that the CSE "considered a recommendation for placement in a NYSED-approved non-public school, however, it was determined that the program recommended in the 2025 IEP would be the least restrictive program still appropriate for [the s]tudent" (IHO Decision at p. 13; Tr. p. 170). In addition, the IHO noted the school psychologist's testimony that the student "did not require an extended school day as it was determined the recommended services could be implemented during the school day as provided by Public School" (IHO Decision at pp. 13-14; Tr. p. 134-135).
Turning to the appropriateness of the parent's unilateral placement of the student at iBrain, the IHO found that the hearing record did not support a finding that the instruction provided by iBrain addressed the student's academic needs during the 2024-25 school year (IHO Decision at pp. 14-15). The IHO noted that the hearing record lacked information regarding the academic instruction provided to the student for the 2024-2025 school year (id. at pp. 15-16). The IHO found that iBrain education plan was lacking with respect to academic instruction, the iBrain progress reports failed to explain how iBrain instructors addressed the student's reading and math skills, and no schedule was admitted reflecting the academic instruction the student received during the school day (id. at pp. 15-16). The IHO also concluded that it was unclear whether the student's management needs were implemented by iBrain and noted that no information was provided during the hearing about the student's nursing and transportation services (id.). As such, the IHO found that even had the district not offered the student a FAPE, the IHO would have denied the parent's request for direct funding of tuition for the student's attendance at iBrain and the supplemental services for the 2024-25 12-month school year (id.).
Regarding the 2025-26 school year, the IHO held that the hearing record did not support finding that the instruction provided by iBrain addressed the student's academic needs (IHO Decision at pp. 17-18). As with the findings regarding the 2024-25 school year, the IHO noted the lack of information about how iBrain is providing instruction in literacy and math to enable the student to meet his goals (id.). The IHO stated that there were no progress reports or schedules submitted for the 2025-26 school year, and no testimony was given by iBrain's deputy director about the academic instruction offered to the student during the 2025-2026 12-month school year (id. at p. 18). The IHO found that it was unclear how iBrain modified its curriculum to enable the student to receive educational benefits and noted that no information was provided about the student's nursing and transportation services for the 2025-26 school year (id. at p. 18). As such, the IHO found that even had the district not offered the student a FAPE, he would have denied the parent's request for direct funding of tuition for the student's attendance at iBrain and supplemental services for the 2025-26 12-month school year (id. at pp. 18-19).
The IHO then addressed equitable considerations (IHO Decision at pp. 19-20). For the 2024-25 school year, the IHO determined that while the student began attending iBrain in August of 2024, the parent did not provide 10-day notice to the district until October 4, 2024 (id. at p. 19). As the parent failed to provide a timely 10-day notice, the IHO held that a reduction of the parent's requested relief for the 2024-2025 12-month school year by 50 percent would have been warranted (id.). For the 2025-26 school year, the IHO determined that the parent was not entitled to direct funding for the nursing services because there was no proof that the undated contract was actually signed by the parent given the parent's lack of testimony (id. at pp. 19-20). Thus, the IHO found that a denial of the parent's request for direct funding for the nursing services for the 2025-26 school year, in its entirety, would have been warranted on equitable grounds (id. at p. 20).
Lastly, the IHO denied the parent's request for an independent educational evaluation (IEE) because the parent failed to set forth specific concerns with any of the district's evaluations, and the IHO found that the claim that the district failed to evaluate the student within the past three years was contradicted by the record (IHO Decision at p. 21; see Dist. Ex. 13). Moreover, the IHO noted that even if the district failed to evaluate the student, the parent "would still not be entitled to an independent neuropsychological evaluation as the proper relief would be for [the d]istrict conduct those evaluations in the first instance." (IHO Decision at p. 21).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in dismissing the parent's claim for the 2024-25 school year regarding the March 2024 IEP; in finding that the district offered the student a FAPE for the 2025-26 school year; in determining that iBrain was not an appropriate placement; in finding that the equitable considerations did not support the parent, and in finding that iBrain was not the student's placement during the pendency of the proceeding. Along with the request for review, the parent submits an exhibit list with five proposed exhibits and asks that the SRO consider them with the request for review (SRO Exs. A-E).
As a threshold issue, the parent acknowledges that the request for review was not served and filed on time and contends that she has good cause for the delay in filing. The parent asserts that when the IHO circulated the decision to the parties, he did not send it to the email address provided by parent's counsel for email service. The parent cites to proposed SRO Exhibit A, an appearance letter from parent's counsel, dated September 3, 2025, which contains the statement "[p]lease email me at Marina@pabilaw.org and copy Hearings@pabilaw.org for any future correspondence about this case." According to the parent, the "IHO's unilateral departure from that protocol deprived [the parent] of timely notice of the decision and interfered with [her] ability to exercise appellate rights within the prescribed deadlines." The parent asserts that because she did not receive the decision "within the statutory time to file the [request for review]," good cause exists for acceptance of the late request for review. The parent further argues that the district will suffer no prejudice if the SRO accepts the request for review as a late filing, but the parent would be "deprived of relief without review."
As relief, the parent requests an order from the SRO finding that, the district failed to provide the student with a FAPE for the 2024-25 and 2025-26 school years; iBrain is an appropriate placement for the student for the 2024-25 and 2025-26 school years, and equitable considerations fully favor the parent. The parent also requests that the SRO issue an order requiring the district to provide direct funding for tuition, special transportation, full-time 1:1 nursing services, a neuropsychological IEE, and an assistive technology evaluation.
In an answer, the district denies the allegations contained in the parent's request for review and alleges that the appeal should be dismissed because it is untimely. Along with its answer, the district submits four proposed exhibits and asks that the SRO consider them in determining the outcome of this appeal (SRO Exs. I; II; III; IV).
The district argues that since the IHO's decision is dated October 15, 2025, the parent was required to serve the request for review on the district no later than November 24, 2025. However, the district contends that the parent served the request for review well beyond the regulatory timeline, and for support, cites to proposed SRO Exs. I and II, which include an email dated February 6, 2026, from parent's counsel to the district attaching the notice of intention to seek review, and an email dated February 27, 2026, attaching the parent's request for review, memorandum or law, and proposed SRO exhibits (see proposed SRO Exs. I, II). In response to the parent's asserted good cause for the delay, the district cites proposed SRO Exhibit III, to demonstrate that the IHO decision was sent to the email addresses of the individual who authored the appearance letter, represented the parent at hearing, and submitted the parent's closing brief, and, as such, the parent has not established good cause. The district next argues that the SRO should reject the parent's proposed SRO Exhibits B through E, as such documents are not necessary to decide the appeal, were available at the time of the hearing, and are largely duplicative of documents already included in the hearing record.[5]
In a reply, the parent denies the allegations set forth in the district's answer and asserts that "[u]nforeseen circumstances prevented the timely submission of [the] appeal" and "[s]trict enforcement of a procedural deadline should not preclude review when, as here, the delay resulted from factors outside the [p]arent's control."[6] The parent also argues that the SRO should accept the parent's additional evidence, and in particular, proposed SRO Exhibits B and C which constitute the nursing and transportation agreements for the 2024-25 school year, which were not previously in the hearing record (proposed SRO Exs. B, C).
VI. Discussion
A. Preliminary Matters – Additional Evidence
As a threshold matter, it must be determined whether the additional evidence proposed by the parent and the district should be considered in this appeal.
Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of the Dep't of Educ., Appeal No. 08-024; Application of a Student with a Disability, Appeal No. 08-003; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).
While this matter is being disposed of on procedural grounds, I find that the parent's proposed SRO Exhibit A, and the district's proposed SRO Exhibits III and IV, are relevant and necessary for the undersigned to determine whether the parent has shown good cause to excuse a failure to timely seek review within the 40-day timeframe. The parent's proposed SRO Exhibit A is an appearance letter from parent's counsel dated September 3, 2025, which contains the statement "[p]lease email me at Marina@pabilaw.org and copy Hearings@pabilaw.org for any future correspondence about this case" (SRO Ex. A). Given the parent's claim that the IHO "failed to send the [IHO Decision] to the email address where [p]arent's counsel expressly agreed to accept email service," parent's proposed SRO Exhibit A will be considered (see SRO Ex. A). However, the parent's remaining proposed exhibits, as discussed above, are not relevant to the timeliness of the request for review nor any assertion of good cause for the late filing, and thus, are not necessary and will not be further considered (see proposed SRO Exs. B; C; D; E).
Additionally, the district's proposed Exhibits III and IV are also relevant in assessing when and how the IHO issued the decision and whether the individual who issued the appearance letter continued to represent the parent through the hearing and appeal process, and thus, they will be considered. SRO Exhibit III is an email from the IHO dated October 15, 2025, to marina@pabilaw.org and the district's representative, attaching the IHO decision (SRO Ex. III). Moreover, SRO Exhibit IV is an email from marina@pabilaw.org to the IHO, attaching the parent's closing brief on September 26, 2025 (SRO Ex. IV).
While I will consider SRO Exhibits III and IV, SRO Exhibits I and II simply demonstrate the date upon which the parent's counsel served the notice of intention to seek review and the date the parent's request for review was served on the district, respectively. This evidence is cumulative, given the affidavit of service attached to the parent's pleadings (Parent Aff. of Service p. 13) and as such it is not necessary and will not be further considered.
B. Timeliness of Request for Review
I now turn to the timeliness of the request for review and find that the parent's appeal should be dismissed for failure to comply with State regulations governing appeals before the Office of State Review.
An appeal from an IHO's decision to an SRO must be initiated by timely personal service of a notice of request for review and a verified request for review and other supporting documents upon a respondent (8 NYCRR 279.4[a]). A request for review must be personally served within 40 days after the date of the IHO's decision to be reviewed (id.). If the last day for service of any pleading or paper falls on a Saturday or Sunday, service may be made on the following Monday; if the last day for such service falls on a legal holiday, service may be made on the following business day (8 NYCRR 279.11[b]). State regulation provides an SRO with the authority to dismiss sua sponte an untimely request for review (8 NYCRR 279.13; see e.g., Application of the Board of Educ., Appeal No. 17-100 [dismissing a district's appeal for failure to timely effectuate personal service on the parent]; Application of a Student with a Disability, Appeal No. 16-014 [dismissing a parent's appeal for failure to effectuate service in a timely manner]). However, an SRO may, in his or her sole discretion, excuse a failure to timely seek review within the 40-day timeline for good cause shown (8 NYCRR 279.13). The reasons for the failure must be set forth in the request for review (id.). "Good cause for late filing would be something like postal service error, or, in other words, an event that the filing party had no control over" (Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *5 [N.D.N.Y. Dec. 19, 2006]; see T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 441 [W.D.N.Y. 2012]).
Here, the parent failed to initiate the appeal in accordance with the timelines prescribed in Part 279 of the State regulations. The IHO's decision is dated October 15, 2025; thus, the parent would have had until Monday, November 24, 2025, to personally serve the district with a verified request for review (see IHO Decision at p. 22; 8 NYCRR 279.4[a], 279.11[b]). According to the parent's affirmation of service, parent's counsel served the request for review on the district via email on February 27, 2026, over 130 days after the IHO's decision was issued (see IHO Decision at p. 22; Parent Aff. of Service p. 13).
The parent's request for review asserts that "[w]hen the IHO circulated the [decision] to the parties, he failed to send the [decision] to the email address where [p]arent's counsel expressly agreed to accept email service" and "[t]he IHO's unilateral departure from that protocol deprived [the parent] of timely notice of the decision and interfered with their ability to exercise appellate rights within the prescribed deadlines." However, the parent notably does not claim that the IHO failed to issue the decision to parent's representative or that the parent did not receive the decision.
In fact, the additional evidence introduced by both the parent and the district demonstrates that the IHO sent the decision to one of the email addresses listed in parent's counsel's appearance letter, Marina@pabilaw.org (see SRO Exs. A; III). While the IHO did not copy the other email address noted in the letter, Hearings@pabilaw.org, it is undisputed that the IHO decision was sent to an employee in the office of parent's counsel who represented the parent at the September 4, 2-25 and September 9, 2025 hearing dates and whose email address was listed in the parent's appearance letter, which was also the same email address used to send the parent's closing brief to the IHO on September 26, 2025 (Tr. pp. 46, 186; compare SRO Ex. A, with SRO Exs. III; IV). While the parent, in her request for review, contends that the IHO departed from the method of delivery set forth in the parent's notice of appearance and that she "did not receive [the IHO decision] within the statutory time to file the [request for review]," the parent did not acknowledge that the IHO decision was delivered via email to parent's counsel or explain what actions parent's counsel's office took to ensure that the decision would be forwarded to the parent once delivered to parent's counsel (see Application of a Student with a Disability, Appeal No. 21-087 [explaining that in email communications with an IHO regarding a hearing process, "it was the responsibility of the parent to periodically check the spam folder at the risk of the consequences for the failure to do so"]). Overall, neither the parent's request for review nor the parent's reply provides specificity regarding the "unforeseen circumstances" outside the parent's control which prevented her from exercising her right to appeal and, accordingly, provides no basis for finding good cause for the late service of the request for review.
Additionally, while the parent asserts that the district will suffer no prejudice if the SRO accepts this request for review as a late filing and the parent would be deprived of relief without review, the lack of prejudice to the district does not, by itself, provide good cause for why service of the December 2025 request for review was not made on time (see B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 367 [S.D.N.Y. 2013] [indicating that, while an SRO might in his or her discretion "consider whether a party has suffered prejudice, the regulations require a showing of good cause to excuse untimeliness"]; see also M.K. v. New York City Dep't of Educ., 2026 WL 866416, at *4 n.2 [S.D.N.Y. Mar. 30, 2026][noting that a lack of prejudice was not the standard to assess dismissal for untimeliness]; M.G. v. Rye City Sch. Dist., 2025 WL 343617, at *4 [S.D.N.Y. Jan. 30, 2025], aff'd, 2026 WL 520677 [2d Cir. Feb. 25, 2026][same]). Examination of the February 2026 request for review and accompanying documents shows that no good cause has been asserted or found to excuse the untimely service of the verified request for review on the school district (8 NYCRR 279.13).
Accordingly, because the parent failed to properly initiate this appeal by effectuating timely service of the request for review on the district and I do not find the parent's attorney's explanation to constitute good cause for the untimeliness, in an exercise of my discretion, the appeal is dismissed (8 NYCRR 279.13; see Avaras v. Clarkstown Cent. Sch. Dist., 2019 WL 4600870, at *11 [S.D.N.Y. Sept. 21, 2019] [upholding SRO's decision to dismiss request for review as untimely for being served nine hours late notwithstanding proffered reason of process server's error]; New York City Dep't of Educ. v. S.H., 2014 WL 572583, at *5-*7 [S.D.N.Y. Jan. 22, 2014] [upholding SRO's decision to reject petition as untimely for being served one day late]; B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 365-67 [S.D.N.Y. 2013]; T.W., 891 F. Supp. 2d at 440-41; Kelly v. Saratoga Springs City Sch. Dist., 2009 WL 3163146, at *4-*5 [Sept. 25, 2009] [upholding dismissal of a petition served three days late]; Keramaty v. Arlington Cent. Sch. Dist., 05-CV-0006, at *39-*41 [S.D.N.Y. Jan. 25, 2006] [upholding dismissal of a petition served one day late], adopted [S.D.N.Y. Feb. 28, 2006]; Application of a Student with a Disability, Appeal No. 18-046 [dismissing request for review for being served one day late]).
VII. Conclusion
Having found that the parent failed to timely initiate the appeal, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] The hearing record contains duplicative exhibits (compare Parent Ex. C, with Dist. Ex. 4). For purposes of this decision, only parent exhibits are cited in instances where both a parent and district exhibit are identical in content. The IHO is reminded that it is his responsibility to exclude evidence that he determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5 [j][3][xii][c]).
[2] According to the due process complaint notice, the student began attending iBrain in 2024; in addition, the due process complaint notice states that prior to attending iBrain the student "had not been enrolled in any educational program but received related services through early intervention until the age of three" and that the student "turned three (3) years old" in 2024 (Parent Ex. A at p. 4). Given that the student was 15 years old at the time of the impartial hearing (see Parent Exs. A at p. 1; C at p. 1), it appears that at least some of the information about the student included in the due process complaint notice was in error and may have been copied from a document regarding a different student.
[3] As noted above, the due process complaint notice contains some factual assertions that do not appear to relate to this student, and the reference to a May 2025 CSE meeting is included in the same paragraph as to the incorrect assertion as to the student's age (Parent Ex. A at p. 4). There is no indication in the hearing record that the CSE convened in May 2025 to review the student's educational programming and the last CSE meeting for the student, based on the information in the hearing record, occurred in April 2025 (see Parent Ex. C).
[4] The IHO noted the school psychologist's testimony that although the CSE did not recommend music therapy, the specific areas that music therapy targeted could be addressed by the services recommended in the April 2025 IEP, which included speech-language therapy, OT, and PT (IHO Decision at p. 12).
[5] I note that the district does not object to the admission of proposed SRO Exhibit A, and, as it is pertinent to the threshold issue on appeal, I will consider it for that purpose.
[6] Notably, the parent provided no specifics regarding what these unforeseen circumstances consisted of or the factors outside the parent's control.